Spring Screening:Snag ’em or Flag ’em? Page 4

AttPro AllySPRING 2017 ◊ ISSUE 22

AttPro Snippets Page 5

Spring Tech Tip Page 5

Yes,You Can Learn toKeep Your Desk

CLUTTER-FREE

A Problem That Might Be Solved with

A Can of Gasoline and Some Matches Page 6

Page 2

Reality: In most cases, such clutter is a visual distraction that prevents you from concentrating fully on the task at hand. Those who work well at a disorganized desk probably do so in spite of the chaos, not because of it. Consistent use of a personal organizer, or at least a “to do” list and a calendar, is a more reliable way of keeping track of your projects and appointments.

What does your desk look like right now? Is it a neat, orderly surface conducive to efficient work and clear thinking? Or is it a repository for papers, projects, memos, advance sheets, legal magazines, Post-It notes, a half-eaten sandwich, and empty soda cans? Most likely, it vacillates between those two extremes. At times, it reflects the high-pressure, fast-paced nature of your practice. At other times (when the clutter has gone beyond the limits of what your eye can stand), it is immaculate – the result of several hundred dollars worth of billable time foregone while you tidied up the debris of your last few dozen projects.

Unless you are one of the few attorneys whose natural orderliness (or that of a devoted assistant) helps you maintain a working area which is well-organized and free of distracting clutter, it is time to consider changing your work habits to include keeping your desk clutter-free. Consider these benefits:

1. A tidy, well-organized work area will help you focus on the task at hand because there will be no papers, magazines, phone messages, or other

items to distract you.

2. The items that you need to work on a particular project will be easy to find, because they were filed neatly away when you cleaned up your desk.

3. You won’t have to worry about remembering appointments or work commitments, because you brought your “to-do” list and your calendar up-to-date as you cleaned up your desk.

4. You will no longer misplace papers, invitations, announcements, and other items whose temporary or permanent disappearance results in lost opportunities, frantic races to meet deadlines, or even missed deadlines and the threat of malpractice

5. You will no longer spend frantic minutes going through piles of papers on your desk trying to find a crucial item that you must have to complete the project at hand. A survey has shown that people spend an average of 22 minutes a day looking for items on or around their desks. (Tracy, Declan, Clear Your Desk!

AttPro Ally Spring 2017 — attorneyprotective.com

By Margaret Spencer Dixon, Esq.

Meg Spencer Dixon, a lawyer and consultant specializing in time management, project management, and stress management seminars and coaching for lawyers and legal professionals, continues to insist that the word “gullible” is indeed in the dictionary.

First published by the American Bar Association’s Lawyering Skills Bulletin, Vol. 3, No. 4 (1993)

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Myth: A desk piled high with papers, notes, and reminders demonstrates that you are busy and productive. It is an effective way to keep on top of your work commitments, because “out of sight” means “out of mind.”

AttPro Ally Spring 2017 — attorneyprotective.com 3

Dover, New Hampshire: Dearborn Publishing Group, 1992 at 35.) At a billable rate of $150 an hour, this adds up to more than $12,000 a year.

6. Your desk will look, rightly or wrongly, as though it belongs to someone who is on top of her work and able to handle her responsibilities.

7. Your desk will reflect the calm-inducing beauty of orderliness, which in turn will reduce the level of stress you face every day.

Do these benefits outweigh the following costs of keeping an orderly desk?

1. It will take a measure of time and effort to achieve a clutter-free desk initially, and it will take a few minutes a day to maintain it.

2. You will no longer be able to illustrate – to yourself or to others – how busy you are based upon the height of the stacks of paper on your desk (and floor, credenza, shelves, etc.)

3. You will have to give up the adrenaline rush that comes from the exquisite relief of finally unearthing a crucial document from the piles on your desk.

4. You will no longer have a ready-made excuse for missing opportunities to attend professional functions, because you will no longer misplace the announcement or invitation, only to rediscover it two days after the event has occurred.

How to Clean Up Your Desk(A Step-by-Step Guide for the Organizationally-Challenged)

Have the following items at hand:

1. A few hours of low-pressure time during which you are unlikely to be interrupted. Weekend mornings are good, as is the “recovery” time after you’ve met a major deadline and your brain is not yet back in shape to deal with “real” work.

2. A wastebasket and recycling container.

3. A pad or two of sticky notes.

4. Two thick writing pads. Write “TO DO” at the top of one pad and “WORK PROJECTS” at the top of the other.

5. A pen or pencil.

6. Your personal organizer, or at least a pocket calendar.

7. One desk drawer with adequate room for office supplies.

A PlanSometimes the task of cleaning up your desk seems so overwhelming that a major stumbling block is figuring out where to begin. For simplicity’s sake, here is an arbitrary plan that will take you over the hurdle: begin with the item nearest your telephone, and work clockwise around your desk until you reach your telephone again.

Pick up the one item nearest your telephone. (The only things that do not count as “items” for the purposes of this clean-up are: a telephone, a lamp, a computer, your pad of sticky notes, your two legal pads, your writing implements, and your personal organizer. That’s it. Everything else is subject to this clean-up.)

At the end of this process, your desktop will be clear, your calendar and Rolodex will be up-to-date, and your to-do list will be ready to be prioritized. All the paper that was on your desk is either in the wastebasket, recycling container, or in numbered or labeled piles on the floor. Use your WORK PROJECTS list to have file labels typed up for each project, and transfer the papers into the labeled files. The first character of each label should be the number of the project on your WORK PROJECTS list, which has now become the primary index to your project files. (It’s a simple matter, using word processing, to create secondary indices cross-referenced according to client, case, subject matter, etc.) Your “Hold” and “To Read” items can also go in files, or can stay in neat stacks on a shelf near your desk.

Daily MaintenanceEvery day – ideally, just before you go home – quickly go through the basic procedure outlined above. Starting at your telephone, pick up every item you come across and put it in its proper place or file, making notes on your calendar, to-do list, and Rolodex as you go. This is also a good time to check your calendar for tomorrow’s appointments and to prepare your to-do list. With practice, you’ll be able to sweep through these tasks very quickly. And the real joy comes in the mornings, when you arrive at the office ready to being your work day at a tidy, clutter-free desk.

Spring is the perfect time to take a fresh look at firm practices, including the firm’s prospective client intake procedures. Effectively evaluating a prospective client should determine whether they belong in the “keep” or “toss” box! Consistent and effective client screening can reduce the risk of engaging in representation with an undesirable client or on a matter not consistent with the firm’s areas of expertise. A well-developed initial client screening process can capture information vital to saving the firm valuable time, and avoiding potential headaches. Without effective intake procedures the firm could easily get bogged down in chasing unpaid bills or absorbed by unnecessary coddling of a high maintenance client. So, what are the firm’s typical intake procedures and are they effective?

A comprehensive client intake form should serve as the initial step in the client screening process. The form should be comprised of questions that elicit information necessary for efficient and effective representation. Templates available through most state bar associations can serve as a starting point for the development of a firm’s own unique intake form, or as a comparator for refining an existing one. One size does not fit all, but forms still offer a great starting point to ensure that key questions are addressed and not forgotten. For example, understanding the prospective client’s motivation and expectations could be crucial. So questions such as “Knowing that there are no guarantees, what outcomes can you accept?” are fundamental and illuminating. If a client’s motivation behind a law suit is primarily revenge or retribution, a “thanks, but no thanks” may be the appropriate response to the proposed engagement.

The intake form should also inquire into prior representation on the matter. Questions regarding prior representation may offer a sense as to whether the potential client will be difficult to satisfy. If a potential client has already gone through three lawyers before contacting the firm, it may be an indication of his or her unrealistic expectations, or a payment-avoidance strategy. Either way, the firm most likely does not want that client!

AttPro Ally Spring 2017 — attorneyprotective.com4

By Erin McCartney, Esq.

After the intake form is reviewed, the client interview should take the vetting process to the next level. During the client interview, an attorney should try and understand what the client wants to accomplish by means of the representation. This is the time to let the prospective client talk, by asking them open-ended questions and applying additional subjective assessments of their responses. The client interview can provide valuable insight into expectations and any underlying issues that could be a factor into whether the firm wants to take on the matter. Take adequate time to develop a feeling as to whether the client will be a problem- really listen to their responses and don’t discount a “gut feeling” about a prospect! The interview process is a means to uncover unrealistic expectations and sense whether the client appears truthful and cooperative. The interview should also assess whether a client can afford the firm’s legal services. Discussing a reasonable estimate of fees and expenses and gauging the potential client’s reaction is simply good due diligence.

The bottom line is that effective client screening can preclude major problems for the firm down the road. If there is an established, repeatable intake process, the firm will be more likely to capture the information needed to ensure it is not taking on undesirable clients or matters. If the first reaction to discovering a problem with a client is “I knew this client was going to be trouble!” or “I knew I should not have taken this case!” the firm needs to do a better job screening potential clients. Changing lawyers in the middle of a case, trashing the lawyer they just left, reluctance to answer basic questions, providing inconsistent, incomplete information or wanting to use the legal system as a weapon for revenge or retribution are all red flags. Do not ignore these warning signs and don’t forget to listen to that gut instinct warning, “Danger ahead!” Remember, a lawyer has the right to decline a case or client. Just like that unopened gadget that has been gathering dust in the garage for months, sometimes the best decision for the firm is to place that concerning prospect in the “toss” bin and move on with a clear conscience.

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AttPro Snippets:

Meet the AttPro Claims TeamDid you know that the AttPro claims team is staffed by attorneys?

Jim Cartier, Esq. has been a licensed attorney for 29 years. Jim graduated from Georgetown University and from Southern Methodist University School of Law after serving in the U.S. Army. Jim has been handling LPL claims since 1999.

Brian DeHem, Esq. has been a licensed attorney for 8 years. Brian graduated from the University of Arkansas and Indiana University Maurer School of Law. Brian has been handling LPL claims since 2009.

AttPro Ally Spring 2017 — attorneyprotective.com

Spring Tech Tip:Is your firm considering practice management software? There are several programs available that can assist with critical tasks such as document management, calendaring events and legal billing. Therefore, the process of finding the right software for your firm can seem a bit overwhelming. Firms active in specific practice groups within your local or state bar associations are often helpful in identifying software that might work well for your firm. It may also be a good idea to consider a program that has a reputation for providing great customer service, especially if you are new to practice management software. Because each firm’s needs are unique, it would be difficult to recommend the right software for your firm. However, Clio and Smokeball are two reputable practice management software options that can serve as a starting point in your research. For more information please visit: https://www.clio.comhttps://www.smokeball.com

AttPro Ally Spring 2017 — attorneyprotective.com

Spring is the time for tidying up old things in preparation for new beginnings. It’s a great time to destroy old, closed files – in compliance with your office file retention/destruction policy, of course. If you have such a policy, it has been provided to your clients, and you properly closed the file when the work was completed, then file destruction is automatic and painless. If you don’t have such a policy, or you have not completely implemented it, you have some catching up to do.

So what should you include in your file retention/destruction policy (“Policy”)? In short, it should provide your client with everything they need to know, up front, about what will happen once your work is complete. It should state: what you will return to the client when the file is closed; what material you will retain in your closed file; how long you will keep the closed file; and what you will do with it when that time is up. The Policy

should be referenced in and attached to your initial engagement letter.

So when the client signs the engagement letter, they agree to the terms of your Policy.

As soon as you create a Policy, you should send it

to all of your current and past clients for whom you still have files. Past clients become harder to locate as time passes. And, if you don’t already have preapproval for destruction after a given amount of time has passed, you have an obligation to make reasonable efforts

to find missing clients and obtain their consent to their file’s destruction.

A file is considered closed when you have completed the legal work, been paid for it, and have sent a letter to the client stating the representation is over. That “closing letter” should return to the client all of the client’s property, and it should remind the client of the existence of the Policy with a short sentence or two – “As you know, our policy is to retain your file for seven years and then to destroy it in a manner that protects its confidentiality. If you want all or part of your file before then, please make your request in writing and we will make it available to you.” However, before sending the closed file to storage, review it for any remaining property belonging to the client. This includes original deeds; mortgages; promissory notes; birth, marriage and death certificates; photos; any document with an original signature; and any non-document tangible property you received from the client.

As you review the file to retrieve all client property, you should purge from the file all documents which are duplicates, publicly available or kept on your electronic system (i.e. pleadings available online and/or are scanned into your e-system, deposition transcripts and exhibits which exist either on a disc or on your e-system and documents produced or received in discovery in e-format.) You also don’t

need to keep copies of cases when there is a legal research memo which summarizes the research. Don’t forget to take out unused legal pads. And

George D. Jonson, Esq.

George spends a

significant part of

his professional time

defending lawyers in

legal malpractice and

disciplinary cases. In his off

hours, he drinks bourbon

and designs Totem Poles

that he never gets

around to carving.

By: George Jonson, Esq.

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AttPro Ally Spring 2017 — attorneyprotective.com 7

do it all now! It is easier to review and purge the

paper files one at a time as you close them than it is at

some later date, en masse.

Gather all related electronic files. This includes electronic data from servers,

local hard drives, laptops, zip drives, memory sticks, flash drives and mobile devices – including emails, texts, document drafts, letters, charts, spreadsheets and databases. And don’t forget your time and billing records. All of these are part of the file you should retain. Now you are ready to retain the existing e-file and the reduced paper file for the retention period stated in your Policy.

Although there is no hard and fast answer to how long you should keep the file, my minimum retention for what looks to be a straight-forward file with no reasonable afterlife is seven years. Here are some other things to consider:

• For a file in which you have used your IOLTA account, keep your file for as long as you are required to keep your IOLTA records.

• For files which may become active again, like estate planning files, transactional files, etc., retain as long as reactivation is reasonably foreseeable.

• For cases involving minors, retain at least until the minor reaches majority plus the statute of limitations for a legal malpractice claim.

• There may be state specific regulations for file retention of matters involving guardianships, bonded attorney performance, criminal work or probate. (Check your state bar association.)

• Files relating to the negotiation of contracts should be kept for your standard retention period after the contract performance has been completed.

• Files establishing a tax basis in property, domestic relations files which deal with support and custody, adoption files, intellectual property files, and files of problem clients should all be given individual consideration for an appropriate retention period.

• If the client requests the original file, you should make a copy for yourself, at your expense, and retain that for the duration of your retention period.

• If you make a practice of keeping original wills, trusts etc., they should be kept in a fireproof safe separate from the paper client files and should be retained indefinitely.

You must take reasonable steps to protect client confidential information even throughout the destruction process. So don’t just toss files in the closest dumpster. Shredding is always a good solution. If you are going to shred in-house, buy a commercial shredder which complies with the U.S. Department of Defense standards. You can also hire an outside vendor to shred. If you do this, have someone you trust stand in the truck and watch the files being shredded. You can also have the files recycled – but again, someone should accompany the files to watch that they are actually pulped into mash. If you opt for a document destruction service, select a company certified by the National Association for Information Destruction (NAID). And then there is always a can of gasoline and some matches…

Be sure to keep a log of file destruction so that you can prove how and when a particular file was destroyed. To some extent, we are required to be pack-rats in this profession. Don’t carry that burden any longer than you have to. Plan, organize, destroy, rejoice. It’s Spring!

You must take reasonable steps to protect client

confidential information even

throughout the destruction

process.

5814 Reed RoadFort Wayne, IN 46835-3568

Visit us at attorneyprotective.com or call (877) 728-8776.

ERIN MCCARTNEY, ESQ., EDITORPolicies are written by either National Liability & Fire Insurance Company or National Fire & Marine and administered by Attorney Protective. All coverage is subject to specific policy terms and conditions. 2017 Attorney ProtectiveSM. ® All Rights Reserved. Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com.

This is AttPro Ally. A newsletter for today's modern law firm — AN ALLY IN A WORLD OF RISK.

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Read our article A Problem That Might Be Solved With a Can of Gasoline & Some Matches on page 6.